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Prisoner Has No Right to Independent Drug Test

Prisoner Has No Right To Independent Drug Test

Rick Koenig is an Arizona prisoner who tested positive for marijuana use in an ADx urine test. He was infracted for drug use. Prior to his disciplinary hearing Koenig requested a gas liquid chromatography-mass spectrometer test (a method that is 100 percent accurate) preformed by an independent laboratory, at his expense, to confirm the ADx test results. Prison officials denied the request and found Koenig guilty.

Koenig filed suit in federal court under § 1983 claiming that denial of his request for an independent drug test violated his due process rights. The district court dismissed the suit and he appealed.

The Court of Appeals for Ninth Circuit affirmed dismissal of the suit by adopting the reasoning of Pella v. Adams , 702 F. Supp. 244, 248 (DC NV 1988), modified 723 F. Supp. 1394 (DC NV 1989). The court in Pella upheld denial of a prisoner's request for an independent drug test by claiming it would have a "ripple effect" among other prisoners and impose a significant administrative burden on prison officials. Another reason for the decision is that not every prisoner could afford an independent test.

Essentially, this ruling makes it impossible for prisoners to contest positive results in prison drug testing programs regardless of how careless or slipshod a manner the test program is administered or in light of the inherent unreliability of the EMIT and ADx test systems themselves which are generally conceded to be only 95 percent accurate at the best of times, under ideal conditions. See: Koenig v. Vannelli , 971 F.2d 422 (9th Cir. 1992).

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Related legal case

Koenig v. Vannelli

Koenig v. Vannelli, 971 F.2d 422 (9th Cir. 08/04/1992)


[2] No. 91-16797

[4] filed: August 4, 1992.


[6] Appeal from the United States District Court for the District of Arizona. D.C. No. CV 91-377 ACM. Alfredo C. Marquez, District Judge, Presiding.

[7] Rick Koenig, Tucson, Arizona, in pro se, for the plaintiff-appellant.

[8] No appearance for defendants-appellees

[9] Before: Eugene A. Wright, Jerome Farris and Robert R. Beezer, Circuit Judges.

[10] Author: Per Curiam

[11] Per Curiam:

[12] Koenig, an Arizona prison inmate, tested positive for marijuana use in a random drug test. When prison officials repeated the ADX test,*fn1 he tested positive again. Prison officials cited him for a positive drug screen test. Before his disciplinary hearing, Koenig requested a gas liquid chromatography-mass spechtrometer test*fn2 performed by an independent laboratory at his own expense to confirm the results of the immunoassay test. The prison officials denied it. Koenig was found in violation of prison regulations.

[13] He filed a civil rights complaint under 42 U.S.C. § 1983 against the prison officials. He alleged that their denial of his request for an independent drug test violated due process. The district court dismissed and Koenig appeals pro se. He argues that the court erred in failing to consider his right to call witnesses and present evidence at a disciplinary hearing.

[14] An inmate facing disciplinary hearings may "call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff v. McDonnell, 418 U.S. 539, 566, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1973); Ponte v. Real, 471 U.S. 491, 495, 85 L. Ed. 2d 553, 105 S. Ct. 2192 (1984). When prison officials limit an inmate's efforts to defend himself, they must have a legitimate penological reason. Pella v. Adams, 702 F. Supp. 244, 248 (D. Nev. 1988), modified, 723 F. Supp. 1394 (D. Nev. 1989). Prison officials may explain their reasons at the disciplinary hearing or later. Ponte, 471 U.S. at 497.

[15] In Pella, prison officials denied an inmate's request for an additional drug test performed at this own expense to confirm the results of an immunoassay test. Pella, 723 F. Supp. at 1394. The inmate filed a civil rights complaint based on the same denial of due process rights alleged by Koenig. Following an evidentiary hearing to determine the reasons for denial of the inmate's request, the court held that the denial had a legitimate penological purpose for two reasons. Id. at 1395-96. First, accommodating the inmate's asserted right would create a "ripple effect" among other prisoners, and impose a significant administrative burden on prison officials. Id. Second, not every inmate could afford independent tests. Id. at 1396.

[16] The Pella court's reasoning is persuasive. The Arizona prison officials could legitimately deny Koenig's request for an additional drug test.



Opinion Footnotes


[18] *fn1 The ADx test is a fluorescein polarization immunoassay test (FPIA) that is used to detect marijuana and other drugs in biological fluids. When properly performed, FPIA tests for cannabinoids are generally accurate. Richard H. Schwartz, M.D., Urine Testing in the Detection of Drugs of Abuse, 148 Archives of Internal Medicine 2407 (November 1988).

[19] *fn2 The gas liquid chomatography-mass spechtrometer test is widely used to confirm samples that test positive by immunoassay methods. "It is . . . 100% accurate in determining precisely which drugs have been used by the tested individual." Pella v. Adams, 702 F. Supp. 244, 246 (D. Nev. 1988).